from the missing-the-point dept

One of the key points that many people have been making for decades is that copyright infringement likely wouldn't be such a big problem if they actually made works more available in convenient and reasonable ways. This was never an excuse for infringement, but an explanation and a suggestion on ways to minimize the amount of infringement happening. For the past few years, the big legacy copyright holders have been trying to spin things, claiming that they've made stuff "available," and since there's still "infringement" they obviously need new laws to better "protect" their works. They're basically claiming that because the works are now available in some format, the whole "availability" argument is debunked. Except, of course, they're ignoring the full equation. It's not just about making it available, but making it convenient and reasonably available. Instead, the MPAA frequently touts annoying and inconvenient offerings no one uses, claiming disingenuously that this proves the availability argument is untrue.

The latest is that NBC Universal (the driving force behind many MPAA efforts) has commissioned a study from KPMG on the availability of film and TV titles. The clever folks at KPMG have hidden the important factors in the aggregate stats, looking at a big list of 34 services, and saying that as long as a film or TV title are available on one of them, it's "available." But this conveniently buries the more important stat, dug out by TorrentFreak, that the study actually shows over 80% of top film titles are not available on Netflix, which is, by far, the most popular streaming movie service.

Rather than admit this, of course, the MPAA instead has decided to trumpet its friends' misleading coverage of the misleading report (pretty sure nearly everyone in its list has received money from the MPAA). Many of the MPAA's friends insist, incorrectly, that the report shows that these films are widely available, rather than admit the truth -- which is that they're narrowly available, often in inconvenient ways, separated from how people want to watch (and pay for!) those films.

It would be nice if the MPAA were legitimately interested in reducing infringement by improving innovation and allowing more services to flourish. But it has yet to show any honest intentions on that front, preferring bogus and misleading reports like this one.

from the speed-and-convenience dept

One of the abiding delusions of the copyright industry is that if people -- especially the young -- could somehow be "educated" about the value of intellectual monopolies, they would learn to love them -- despite the fact that there is zero evidence any copyright "education" campaign has worked. In this context, some interesting research from the UK, reported by TorrentFreak, explored the attitudes of both young and old to accessing online content. Here's one of the striking results of that work, which suggests that the copyright industries are losing the battle for the hearts and minds of future online users:

half of the up-and-coming generation believes that the Internet should be a content free-for-all. A total of 49% of the 8 to 15-year-olds questioned said that they believe that people should be able to download the content they want from the Internet for nothing.

The following is particularly noteworthy:

The mainstream entertainment companies invariably insist that downloading movies and music without permission is tantamount to stealing. However, when it comes to the UK's children the survey suggests that Big Entertainment has a mountain to climb to have that notion widely adopted. While 16% of children accept that it's wrong to obtain content for free without the creator's permission, just 7% believe that file-sharing is a form of stealing.

That is, 93% of the 614 young people interviewed do not accept the copyright industry's relentless attempts to brand file-sharing as "stealing." This result is comparable with that found by Swedish research among a similar age group. The rest of the UK survey throws useful light on what the main problem is here. Once again, it seems to be about the affordability and usability and online services:

Among the children, whose resources are often more limited, 44% said their motivation was financial, with a quarter of 16-24 year olds reporting that file-sharing is the only way they can afford to access content online.

Unsurprisingly, the issue of accessibility came in at a close second place for both [age] groups. The speed and convenience of file-sharing was cited as a key motivator for use by 41% of adults and 38% of the children.

As Techdirt keeps pointing out to the copyright industry, all these studies suggest the same solution to reducing unauthorized sharing: offering easy-to-use services at fair prices. When will it ever learn?
Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

from the awesome-on-multiple-levels dept

Here's a story which hits on so many different points that we're interested in. There's a new effort to crowdsource a "prize" for whoever can release an open source jailbreak for iOS7. First off, we've been big fans of "innovation prizes" like the X Prize. We're also big fans of crowdfunding -- so here's an example of combining both of those: crowdfunding an innovation prize -- which has already reached about $6,500 despite no publicity (yet). Next, the prize is for another thing that we think is of utmost importance: the freedom to tinker with products you bought. The locked down nature of the iPhone remains one of the shames of modern technology. Encouraging a true, open source jailbreak is important in opening up the technology -- for a variety of important reasons (including a huge one that inspired this project, as will be explained below). The project also has a four person team to judge which solution will qualify for the prize, including some folks you might recognize: Cory Doctorow, Kyle Wiens (of iFixit) and Gabreilla Coleman (professor who studies hacktivism, Anonymous and has posted here).

But perhaps the most interesting (if unfortunate) point in this story is the reason for the project in the first place. The fourth judge is Chris Maury, who inspired the creation of this project in the first place. Maury has Stargardt's Macular Degeneration, a genetic condition that has taken him from having 20/20 vision just a few years ago to rapidly losing his vision, to the point that he will eventually be legally blind (already he can no longer drive). He would like to be able to actually use his iPhone but much of the software that makes the phone usable with his vision isn't available in the iTunes App Store. Thus, he needs to jailbreak the phone in order to use it.

This is really the most shameful part of locked down systems. In the past, we've talked about how the short-sighted view of people who want to lock out certain types of applications almost resulted in a young girl being unable to communicate, and here we have a situation where someone with a severe visual impairment can't get everything possible out of the devices he's purchased. What kind of world are we living in that we think it's okay to have this as "standard operating procedures" for the electronics we use every day?

Thankfully, what giant companies try to lock up, creativity can hopefully unlock. And, in this case, we've got layer upon layer of creative innovations to try to get around a bad situation. While it's unfortunate that such a project is even necessary in the first place, it's inspiring to see this kind of creativity pop up to try to solve the problem. Go check out the project. If you want to contribute to the prize, you can do so there (and, yes, they accept Bitcoin, too), or if you feel like creating an open source jailbreak for iOS7 and collecting the prize (or just basking in the wonders of doing something good), check it out as well.

from the well-isn't-that-convenient? dept

Last week, we discussed a recent We The People petition at the White House, asking the administration to support the treaty for the blind, which would make it easier to access creative works for the blind by creating a few small "exceptions" to copyright law (i.e., returning rights to the public) for the sake of sharing formats that are accessible to the blind across borders. However, some blind advocacy groups have discovered that, if you happen to be blind/visually impaired, it's basically impossible to sign the petition.

The glitch, the group says, is in those often annoying tests that require users to type in a set of numbers and letters to prove they are human. On the White House web site, blind users can select an audio version of the test, but the audio is incomprehensible, according to federation spokesman Chris Danielsen.

And if users want to send email notifying the White House about the problem, well, that also requires a computer-human test with garbled audio, too, he said.

That's certainly convenient for an administration that has increasingly moved away from its earlier stance that it supported this treaty. Now, making it almost impossible for the actual stakeholders to express their opinion really should drive home why increased accessibility is important. Hopefully the White House will quickly fix this bug, but more importantly, it would be nice if they actually supported the damn treaty.

from the ah,-right dept

We've had a number of stories concerning the hit TV show Game of Thrones and the issue of people downloading unauthorized copies of the show. Due to a variety of reasons mostly centered around HBO's cable relationships, HBO has not made the show available online, for the most part, unless you already have a cable TV subscription that includes HBO. The math here is a bit silly (due to the ridiculous nature of how pay TV works these days), but HBO more or less has done the math that says it's better off losing out on people who are willing to pay and who will inevitably infringe instead, by not pissing off the pay TV folks who pay them a much bigger lump sum. I think this is short sighted, because while the math works out today, the trend is in the wrong direction, and if HBO doesn't get in front of that trend, by the time the math "catches up," they could be in a lot of trouble.

According to Jeff Cusson, HBO’s senior vice president of corporate affairs, “We think the key to combating piracy is to make content like Game of Thrones available worldwide within the smallest window possible…to 176 territories within the week of the U.S. premiere.”

Cusson said, “HBO is also rolling out HBO Go internationally,” which means many viewers in Europe, Latin America, and in other locations like Hong Kong can watch Game of Thrones at their leisure on their iPad/iPhone, Roku, Xbox 360s, their Android devices, and selected Samsung Smart HDTVs.

First off, it's great that they recognize that the key is making the show more widely available. That's a step up from blaming fans who want to see the show but can't. Of course, it's still ridiculous that HBO Go can't work on other TVs other than "selected Samsung" TVs. But... none of this seems to apply to the US.

When pressed on doing more in the US, Cusson begins answering by not answering.

When asked about the prevalence of piracy in America, Cusson said, “We utilized various tools to protect our copyright in 2012.” I countered that they didn’t work, because it was still the most downloaded show that year. Cusson responded, “We think the success of our business shows that our approach is relatively successful.”

Of course, at one level, he's absolutely right. There's no reason to "stop" piracy if it's not actually harming the show (and, in fact, may very well be helping it). But, at some point, HBO is going to need to realize that it has to make the jump to providing authorized access to Americans who don't have a traditional cable connection. And the longer they wait, the harder it becomes to get people to invest in HBO, because they'll get used to unauthorized alternatives.

If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I'm not creative enough to think of all the implications, but I can assure you that ADA plaintiffs' lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.

The key issue is whether or not a website is a place of public accommodation, which this court ruled it was, despite plenty of other rulings that went the other way:

The most crucial ruling is where the court says that a website qualifies as a "place of public accommodation." The court deviated from--and, incredibly, didn't cite to--a nearly unbroken line of precedent rejecting that conclusion. I don't have a complete roster of cases in this area, but cases that came to mind include Noah v. AOL (a Title II case), Access Now v. Southwest Airlines (an 11th Circuit case), Stern v. Sony, Young v. Facebook and Ouellette v. Viacom. The only plaintiff win in this area is the offbeat National Federation of the Blind v. Target case (which this court did cite), where the court held that Target's obligations to comply with the ADA in its offline retail stores extended to its website. Because of its fact-specific nature, the Target ruling really hasn't had much of an impact on Internet litigation over the past 6 years.

Bypassing all of this precedent, the judge instead relies almost exclusively on the heavily-criticized First Circuit Carparts decision from 1994. The NAD made a crafty venue move suing in a court bound by Carparts. Even so, I wonder how this ruling would fare on appeal to the First Circuit (if Netflix goes that route), and I wonder if judges in other circuits will be persuaded by this judge's ruling.

Of course, some have pointed out in response that this isn't that big of a deal, because of the ADA's "undue hardship" clause, which lets companies avoid accommodating the ADA if it presents an "undue hardship." While that may limit the most egregious cases, it still creates a ton of problems. The "undue hardship" clause is only a defense, and it's judged on a case-by-case basis, where the standards are incredibly vague and it has been described as a high bar to meet. Plus, the entire burden is put on the company (in this case, website), so there will likely be tons of lawsuits against websites until the actual standard for what counts as "undue hardship" is cleared up.

Even more insane in all of this is the one issue that Goldman only briefly alluded to in his piece: the requirement for closed captioning presents a massive potential copyright issue. We've seen people get in trouble for providing subtitles already. So suddenly this creates a damned if you do, damned if you don't situation: provide closed captioning and get sued for copyright infringement, or don't and get sued for ADA violations. Is copyright infringement (and a possible lawsuit?) an "undue hardship?" Who knows.

Of course, the paragraph above points out another issue with this ruling: that this is really an issue for the movie studios, not Netflix. Blaming Netflix is blaming the wrong party. Of course, the judge didn't seem to care about that. When Netflix raised that issue, the judge said that "this argument lacks traction" because the judge has already decided that Netflix is a place of public accommodation, and that's all that matters.

Hopefully Netflix successfully appeals this ruling. Otherwise, we're about to be in for a whole bunch of ADA claims against websites until the "boundaries" are worked out. For lots of small websites, such lawsuits could be extremely expensive and damaging.